Uganda: Anti-Gay Bill And Witchhunt Violates Constitution

The new anti-gay law violates Article 21 of the Ugandan constitution and Articles 2 and 3 of the African Charter on Human and People’s Rights - both of which guarantee equal treatment and non-discrimination to all people.

It is part of a broader attack on civil society and is symptomatic of Uganda’s drift to Mugabe-style authoritarianism. This wider repression includes a clamp down on protests, strikes, the media and opposition activists.

Summary of the Anti-Homosexuality Bill:

The Bill extends the existing penalty of life imprisonment for same-sex intercourse to all other same-sex behaviour, including the mere touching of another person with the intent to have homosexual relations. Life imprisonment is also the penalty for contracting a same-sex marriage.

Promoting homosexuality and aiding and abetting others to commit homosexual acts will be punishable by five to seven years jail. These new crimes are likely to include membership and funding of LGBT organisations, advocacy of LGBT human rights, supportive counselling of LGBT persons and the provision of condoms or safer sex advice to LGBT people.

A person in authority – gay or heterosexual - who fails to report violators to the police within 24 hours will be sentenced to three years behind bars.

Astonishingly, the new legislation has an extra-territorial jurisdiction. It will also apply to Ugandan citizens or foreign residents of Uganda who commit these 'crimes' while abroad, in countries where such behaviour is not a criminal offence. Violators overseas will be subjected to extradition, trial and punishment in Uganda.

This bill is in some respects even more draconian than the extreme homophobic laws of countries like Saudi Arabia and Iran.

The Anti-Homosexuality Bill has been widely misrepresented as increasing the penalty for homosexuality to life imprisonment. This is incorrect. The penalty for anal intercourse has always been life imprisonment. The new law increases the penalty for other same-sex acts - including mere sexual touching - from seven years to life imprisonment. See the penal code below.

This Bill violates Article 21 of the constitution of Uganda, which guarantees equality and non-discrimination:

21. Equality and freedom from discrimination.

(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect andshall enjoy equal protection of the law.

In violation of the African Charter on Human and People’s Rights:

It also breaches the equality and anti-discrimination provisions of the African Charter on Human and Peoples’ Rights (Articles 2, 3 and 4), which Uganda has signed and pledged to uphold.

ARTICLE 2

Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.

ARTICLE 3

Every individual shall be equal before the law. Every individual shall be entitled to equal protection of the law.

EXISTING UGANDA LAW - Prior to Anti-Homosexuality Bill:

Penal Code Act of 1950 (Chapter 120) (as amended)

Section 145. Unnatural offences

"Any person who—

(a) has carnal knowledge of any person against the order of nature;

(b) has carnal knowledge of an animal; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence and is liable to imprisonment for life.”

Section 146. Attempt to commit unnatural offences

“Any person who attempts to commit any of the offences speci­fied in section145 commits a felony and is liable to imprisonment for seven years.”

Section 148. Indecent practices

“Any person who, whether in public or in private, commits any act of gross indecency with another person or procures another person to commit any act of gross indecency with him or her or attempts to procure the commission of any such act by any person with himself or herself or with another person, whether in public or in private, commits an offence and is liable to imprisonment for seven years.”

Tatchell is a human rights campaigner, and Director of the Peter Tatchell Foundation.